TaxTMI 
TaxTMI 
1991 (10) TMI 291
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.... and has concluded that there is clear indication in the said Rule to supersede the Special Rules. I have given my thoughtful consideration to the reasoning adopted by the learned Judges in their respective judgments. Rule 1(3)(a) of the General Rules, which lays down the extent and applicability of the General Rules, specifically provides that the General Rules shall not be applicable to the State Civil Services for which there are express provisions under any law for the time being in force. When the General Rules were enforced the Special Rules were already holding the field. The Special Rules being "law" the application of the General Rules is excluded to the extent the field is occupied by the Special Rules. I do not agree that the non-obstante clause in Rule 3(2) of the General Rules has an overriding effect on Rule, 1(3)(a) of the said Rules. With utmost respect to the erudite judgment prepared by Yogeshwar Dayal, J. I prefer the reasoning and the conclusions reached by K. Jayachandra Reddy, J. and agree with the judgment proposed by him. K.JAYACHANDRA REDDY, J. This appeal is directed against the order of the Administrative Tribunal, Bangalore dismissing an applicatio....
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.... Transport could only be on the basis of seniority-cam-merit and not by election. From the rival contentions it emerges that the real question involved is one of construction of non-obstante clause in Rule 3(2) and its fleet on the Special Rules providing for promotion to the post of Deputy -Commissioner of Transport by selection from the cadre of Regional Transport Officers. We shall now refer to the relevant Special and General Rules. The special Rules were framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India in the year 1976. The special Rules of recruitment for the category of post of Deputy Commissioner of Transport reads thus: Category of Posts Method of recruitment Minimum Qualification 1 2 3 Deputy Transport By promotion by Commissioner selection from the cadre of Regional Transport Officers Must have put in not less than five years of service in cadre of Regional Transport Officers It can be seen that this part of Special Rules clearly provides for promotion to the post of Deputy Commissioner of Transport by selection from the cadre of Regional Transport Officers who have put in not less than....
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....he promotion to the post of a Head or Additional Head of a Department only shall be by selection and that the promotion to all other posts shall be on the basis Of seniority- cum-merit. This clause (b) of Sub-Rule (2) is in general terms and as already noted the General Rules indicate that they regulate general recruitment to all the Karnataka State Civil Services broadly. It is not in dispute that just like the Special Rules providing for recruitment of the Transport Department there are such special rules in respect of many other departments also. It is therefore clear that while General Rules broadly indicate that they regulate general recruitment including promotion to all the State Civil Services but at the same time each Department has its own Special Rules of recruitment and they are co-existing. Such Special Rules of recruitment for the Motor Vehicles Department are not repealed by any provision of the General Rules which are later in point of time. As a matter of fact Rule 21 which provides for repeal does not in any manner indicate that any of the Special Rules stood repealed. It is in this background that we have to consider the interpretation of non-obstante clause in R....
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.... recruitment including promotion by way of selection. Further Rule 4 of the General Rules which lays down the procedure of appointment contains Sub- Rule 2 which reads as under: "4. Procedure of appointment - subject to the provisions of these rules, appointment to any service or post shall be made - xxxx xxxx xxxx (2) in the case of recruitment by promotion -- (a) if it is to a post to be filled by promotion by, selection, by selection of a person, on the basis of merit and suitability in all respects to discharges the duties of the post with due regard to seniority from among persons eligible for promotion. (b) if it is to a post other than that referred to in sub-clause (a) by selection of a person on the basis of seniority-cure-merit, that is, seniority subject to fitness of the candidate to discharge the duties of the post, from among persons eligible for promotion." (emphasis supplied) Though Rule 3(2) of the General Rules is inserted later, the above mentioned Rules remain undisturbed and they co-exist. They provide for recruitment and promotion by selection to certain categories of posts and for others on the basis of seniority-cure-merit. From a combined ....
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....rogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable to and covering a number of cases, of which the particular law is but one. This, as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute, or be the underlying common or customary law of the country. Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so." In Justiniane Augusto De Piedade Barreto v. Antonio Vicente Da Fortseca and others etc., [1979] 3 SCC 47, this Court observed that A law which is essentially general in nature may contain special provisions on certain matters and in respect of these matters it would be classified as a special law. Therefore unless the special law is abrogated by express repeal or by making provisions which arc wholly inconsistent with it, ....
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.... In Aswini Kumar Ghosh and Another v. Arabinda Bose and Another, [1953] SCR 1, it was observed as under: "It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment." It was further held that: "Nor can we read the non obstante clause as specifically repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Councils Act and the Original Side Rules of the Calcutta, and Bombay High Courts. If, as we have pointed out, the enacting part of section 2 covers all Advocates of the Supreme Court, the non obstante clause can reasonably be read as overriding "anything contained" in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as conflicting with the new Act. The enacting part of a statute must, where it is clear, be taken t....
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....ante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment." On a conspectus of the above authorities it emerges that the non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In Such cases the nonobstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ....
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....l Rules. As already noted, there should be a clear inconsistency between the two enactments before giving an overriding effect to the non-obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non-obstante clause. In the instant case we have noticed that even the General Rules of which Rule 3(2) forms a part provide for promotion by selection. As a matter of fact Rules 1(3)(a) and 3(1) and 4 also provide for the enforceability of the Special Rules. The very Rule 3 of the General Rules which provides for recruitment also provides for promotion by selection and further lays down that the methods of recruitment shall be as specified in the Special Rules, if any. In this background if we examine the General Rules it becomes dear that the object of these Rules only is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular department. In such a situation both the Rules including Rule 1(3)(a), 3(1)and 4 of general rules should be read together. If so read it becomes plain that there is no inc....
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.... statutes can reasonably be construed in such a way that both can be . given effect to, the same must be done. In Re Chance [1936] Ch. 266 Farewell, J. observed that "If it is possible it is my duty so to read the section ..... as not to effect an implied repeal of the earlier Act". In Kunter v. Phi/lips [1891] 2 Q.B. 267 it is held that: "It is only when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one then only the two cannot stand together and the earlier stands abrogated by the later". In Municipal Council Palai v. T.J. Joseph, AIR 1963 SC 1561, this Court has observed that there is a presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. It is further observed that such a presumption can be rebutted and repeal by necessary implication can be inferred only when the provisions of the later Act are so inconsistent with or repugnant to....
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....that the general principle that the special law prevails over the general law has one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law. The Tribunal held that a nonobstante clause in Rule 3(2) of the General Rules, which was enacted after the Special Rules, clearly indicates the intention to supersede the special law. The controversy rises in the following circumstances. The Special Rules came into force on or about 10^th December, 1976 on the publication of the same in the Karnataka Gazette (Extraordinary). It consisted of only two Rules- (I) and (II). The first Rule gave the 'title and commencement' and the second Rule dealt with the 'method of recruitment and minimum qualifications'. There was a schedule attached to Rule 1I. In the schedule for the post specified in column 1 thereof the method of recruitment and minimum qualification were specified in corresponding entries in columns 2 and 3 thereof. It dealt with roughly 35 categories of posts. I may mention that there was only one post, namely the post of Deputy Transport Commissioner for which the method of recruitment was by sele....
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....ent otherwise expressly provided for by the Special Rules. Rule 3(1) of the General Rules, before the insertion of sub-rule (2), reads as follows:- "3. Method of recruitment - (1) Except as otherwise provided in these rules or any other rules specially made in this behalf, recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority-cum-merit. The methods of recruitment and qualifications shall be as specified in the rules of recruitment specially made in that behalf: Provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment shall be by selection after an interview by the Commission, the Advisory or Selection Committee or the Appointing Authority as the case may be. Provided further that no person shall be eligible for promotion unless he has satisfactorily completed the period of probation or officiation as the case may be, in the post held by him." The substantive part of Rule 3(1) described....
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....he applications have to be made by the Government servants for recruitments. Rule 16 provided for relaxation notwithstanding the provisions contained in the General Rules or the Special Rules. Rule 16 A provided for appointment by transfer. Rule 17 dealt with appointment by direct recruitment or by promotion in certain cases notwithstanding anything contained in the General or Special Rules. All these Rules arc applicable to all the posts except to the extent as contemplated by Rule(3) of the General Rules. This was the position at the time of enactment of General Rules in 1977. appears that Rule 3 of the General Rules was amended and subrule (2) was added to Rule 3. Rule 3(2) of the General Rules, so added in June, 1982, reads thus: "3(2). Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post-- (a) the promotion to the post of Head of Department of the post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department concerned, shall be by selection: Provided that for the purpose of promotion by selection, the number of persons to be considered shall be suc....
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....f the State. This aspect is absolutely clear by a mere reading of Rule 3(2) of the General Rules. In the case of Maharaja Pratap Singh Bahadur v. Man Mohan Dev. AIR 1966 SC 1931, the Supreme Court approved the following quotation from Maxwell on Interpretation of Statute: "A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, "where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt. with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so." In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act?' It is stated therein that for the general principle that the special law prevails over general law there is one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the ....
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....een in force providing a particular method of either selection or promotion. It appears that because of the experience the Government had of its working, it was thought proper to change this policy, namely - instead of providing selection on the basis of merit to every post, in certain posts, it thought it fit to give due weightage to seniority and merit instead of having the 'best'. The selection of 'best' very often has an element of chance which may not be very conducive to proper climate and harmony in service. It appears that because of that experience the rule making authority thought it fit that the process of promotion by selection should be confined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cum merit. I find that there is a clear mandate of latest intention of the rule making authority contained in Rule 3(2) of the General Rules and this must be respected by the Court. The Courts are not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and implemented even by violation of the Rule, will not be sound rule of construction of stat....